A key difference between evidence gathering in civil proceedings in France compared with the UK or USA is that, in the former, the parties are not obliged by law to comply with any standard of disclosure as the disclosure of evidence is entirely voluntary.

As a consequence, interlocutory measures are often used by French practitioners to obtain, before any trial based on merits, useful evidence in the event of a judicial trial. These measures can be extremely useful in the context of the implementation of a judicial strategy, where a party may struggle to prove its claims.

It is, therefore, useful to take stock of the conditions for obtaining such measures, which are based on the provisions of Article 145 of the Civil Procedure Code (CPC).

What is the mechanism of inquiry before ruling?

Article 145 of Civil Procedure Code (hereinafter CPC) provides that “If there is a legitimate reason to preserve or establish any trial before the evidence of facts which might depend the solution of a dispute, measurements legally admissible statement may be ordered at the request of any interested party on request or in chambers. “ Long prohibited, the aforementioned inquiries (commonly called in futurum) are now part of the civil trial in that they tend to maintain or obtain evidence necessary for proceedings on merits.

Judges tend to welcome this pre-trial procedure without too many difficulties, except when the purpose is considered an attempt to manipulate justice (which is sometimes the case in sensitive cases, unfair competition for example) and the courts are also vigilant about the nature of the measures sought, particularly in opposing competitors records, so as to avoid access to documents protected by special rights.

What are the conditions for such measures?

Article 145 of CPC  provides the following 3 conditions:

  • there is no litigation engaged on the facts giving rise to the request for measures of inquiry.
  • the plaintiff must prove the existence of a legitimate interest in obtaining or safeguarding the evidence.

This legitimate interest is assessed according to the case, knowing that the judge will take a holistic view; thus, it will grant such a measure, if it considers that the future trial based on merits (consistently put forward by the applicant) has some legitimacy (i.e. it does not appear to the judge as clearly doomed to failure).

  •  the measures which are sought must be legally eligible.

This condition actually refers to two elements:

(i) it must be one of the inquiry measures provided by the French procedural code, as follows : the judge’s  personal audit ; personal appearance of the parties ; third party statements and inquiry measures realized by a specialist (measures carried out by bailiff, expert witness etc…) which are in fact the measures sought by the parties in this particular procedure of the Article 145 CPC.

(ii) the judge must ensure that the measures chosen do not affect fundamental rights of the defendant (professional secrecy, intimacy of private life, etc.), or its business secrets1, by making a proportionate assessment.

How does the competent court order such in futurum measure?

Article 145 of the CPC provides either the referral judge in chambers or queries are competent.

The proceedings before the motions judge is ex parte, stage of obtaining the measurement. The motions judge, before issuing its order, therefore must ensure the existence of special and exceptional circumstances justifying non-compliance with the adversarial.

The proof of urgency is not required.

These circumstances are true especially when there is a risk of loss of evidence, without “surprise effect” that makes the request prescription.

When the above circumstances cannot be justified, the way of interim relief is available to the plaintiff.

The interim relief under Article 145 of the CPC is a self referred other cases referred to openings (Cass. Ch mixed., May 7, 1982, No. 79-11814, No. 79-12006 and No. 79-11974 : Jurisdata No. 1982-700910). It is not necessary to demonstrate the existence of an emergency or serious challenge.

What areas of business law can be subject to the measure before ruling?

The areas are extremely varied and there is no limitation as long as the conditions provided by article 145 CPC are fulfilled.

To give some examples, the mechanism provided for in section 145 of the CPC is widely used in construction law and real estate law, for the cause of disorders and extent.

In commercial law, the typical application of Article 145 CPC is in cases involving unfair competition.

The procedure under Article 145 of the CPC is often considered a great success because it often can effectively prepare a future trial on the merits, and compel the other party to disclose material that will be used to substantiate the claims of the plaintiff in a proceeding based on merits.

Conclusion

Equivalent of discovery in common law jurisdictions, in futurum is a very interesting legal tool to collect evidences in France.

Benoît LAFOURCADE

Co-Founder, Partner & Solicitor -
International Corporate Law & Litigation

Benoît, Delcade’s co-founder, is a Paris Bar lawyer and UK Solicitor (London).

Advisor for various embassies, working closely with the firm's team, Benoît offers his services to French and foreign companies requiring cross-cutting strategic and legal support in business law.

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